Doe v. The Ohio State University et al

Filing 66

REPORT AND RECOMMENDATION that 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction be denied. Objections to R&R due within seven (7) days. Signed by Magistrate Judge Terence P. Kemp on 2/22/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

John Doe,

:
Plaintiff,

v.

:

Case No. 2:15-cv-2830
JUDGE GREGORY L. FROST

The Ohio State University,

:

Magistrate Judge Kemp

et al.,
Defendants.

:

REPORT AND RECOMMENDATION
Plaintiff John Doe (not, of course, his real name) enrolled
in the Ohio State University College of Medicine in 2011.
Sometime after that, he decided to pursue a joint degree program
which included an MBA from the Fisher School of Business.

He was

scheduled to graduate with both degrees in 2016.
In July, 2014, John Doe and another OSU student, referred to
here as Jane Roe, were involved in a sexual encounter.

There is

a dispute about the extent to which, if at all, it was
consensual; that dispute cannot be resolved here.

However,

disciplinary proceedings arising out of this incident resulted in
John Doe’s dismissal from the University.

He filed this case

asking the Court to hold that his federal due process rights were
violated during the course of those proceedings.

As part of the

relief which he has requested, he has asked for a preliminary
injunction reinstating him as a student in good standing.

The

motion has been referred to the Magistrate Judge for the holding
of a hearing and the issuance of a report and recommendation.
The hearing was held on February 16 and 17, 2016.

For the

following reasons, the Court recommends that the motion for
preliminary injunctive relief be denied.

I.

Factual Background

Because the timeline of events leading up to his ultimate
dismissal makes up a substantial part of Plaintiff’s case, it
will be recited in some detail.

First, though, some background

about Jane Roe’s academic background is helpful to place some of
the later events into context.
Jane Roe began her medical education at The Ohio State
University College of Medicine in 2013.

By December of that

year, she had asked Dr. Joanne Lynn, Associate Dean of Student
Life, for permission to take a leave of absence and to restart
the first year of medical school in August, 2014.

As she stated

in a later document (Ex. 6, p. 897), she did so due to “academic
and personal challenges” including difficulty adapting to medical
school education and the death of a close family member.

That

request was referred to the Academic and Behavioral Review
Committee (ABRC), which decided to grant her request.

In a

letter to Ms. Roe dated January 17, 2014 (Ex. 6, p. 850) the ABRC
conditioned that grant on her completing summer preparation
courses, continuing counseling at the Younkin Success Center,
continuing with her study group, and maintaining regular tutoring
and academic counseling.

She was told that failure would lead to

“referral to ABRC for consideration of dismissal.”
Ms. Roe began her first year again as scheduled in August,
2014, one month after her encounter with John Doe.

She did not,

upon her return to school, tell any University official that she
believed she had been the victim of sexual abuse at the hands of
John Doe during the preceding month.

She continued to struggle

academically, failing to pass the “Foundations 1" exam until the
third try.

She failed another examination as well, and on March

23, 2015, Dr. Danforth, her Academic Program Director, wrote her
a letter (Ex. 6, p. 853) advising her that due to her receipt of
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an “Unsatisfactory” for “LSI Part One,” he was referring her to
the ABRC with the recommendation that the Committee “consider
dismissal from the College of Medicine.”
Two days later - March 25, 2015 - Ms. Roe first told someone
connected with Ohio State that she had been the victim of a
sexual assault.

She did so by contacting the Ohio State

University Counseling and Consultation Service for what was
described as a “triage phone screening appointment.”

Ex. 6, p.

908.

One day

She did not actually see a counselor that day.

later - March 26, 2015 - the ABRC, through its chair, Dr.
McIlroy, scheduled her hearing for April 15, 2015.

The subjects

of the hearing included “recommendations regarding your
continuation in the College [of Medicine].”

Id., p. 848.

Ms. Roe’s first meeting with a counselor occurred on March
31, 2015.

After that, she was scheduled for ongoing treatment.

She was also referred to the Student Life Advocacy Center and met
with an advocate, Natalie Spiert, on April 2, 2015.

Ms. Roe told

Ms. Spiert about the upcoming meeting with the ABRC as well as
about the sexual assault.
Over the course of the next two weeks, Ms. Roe prepared a
statement to be presented to the ABRC.
appears in Ex. 6 at pp. 897-902.

A copy of that statement

After describing the events

which led to her earlier leave of absence, Ms. Roe explained in
her statement that she had been sexually assaulted in July, 2014,
had struggled with her coursework, had contracted a serious upper
respiratory infection, and, in January, 2015, had become
depressed and isolated due to thinking about the assault.

She

outlined the steps she had taken since that time to make others
aware of the assault and to seek treatment and support, and said
that she was “working with the school administration to complete
the sexual assault reporting process, to make sure some good
comes from what happened.”

Id. at 901.
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She also presented

letters written by Natalie Spiert and Kellie Brennan, Ohio
State’s Title IX Compliance Coordinator, in support of her
request to avoid dismissal from the College of Medicine.

Ms.

Spiert’s letter affirmatively stated that Ms. Roe was “a victim
of a crime sexual in nature,” and Ms. Brennan’s letter said,
among other things, that Ms. Roe was working with the Title IX
office “to report a sexual assault that occurred in July 2014
....”

Id. at 903, 907.

A number of other letters from faculty

members were presented as well.

On April 21, 2015, the ABRC

officially granted Ms. Roe’s request to continue in the College
of Medicine, noting that its decision was based, at least in part
if not entirely, on an “acknowledgment of the apparent impact of
the personal incident [i.e. the sexual assault] which you
described as affecting your performance ....”

Id. at 859-60.

Ms. Roe actually learned of the ABRC’s decision on April 20,
2015, through a phone call, and Ms. Spiert became aware of it at
about the same time.
Three days before (that is, on April 17, 2015), Ms. Roe made
an appointment to meet with Jeff Majarian, who is an assistant
director in OSU’s Office of Student Conduct.

His job duties

include investigating complaints of non-academic student
misconduct and making a determination, based on his
investigation, about whether there is “reasonable cause to
believe” that the University’s Code of Student Conduct “might
have been violated.”

Ms. Roe, accompanied by Ms. Spiert, met

with Mr. Majarian on April 30, 2015.

She first asked him some

questions about what the process would be if she made a formal
complaint of misconduct.

After he answered those questions for

her, she elected to make a formal complaint and, for the first
time, informed a University representative of the name of the
alleged perpetrator.
Mr. Majarian testified in some detail about the
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investigative process.
statement.

First, he met with Ms. Roe and took her

He then contacted Mr. Doe to inform him that he was

the subject of a misconduct investigation.

Both Ms. Roe and Mr.

Doe gave Mr. Majarian the names of witnesses whom they believed
had relevant information.
those witnesses.

He contacted and took statements from

He did no other investigation and did not

request a copy of Ms. Roe’s academic records, although he knew
that it was common for victims of sexual misconduct to receive
some type of academic accommodations.

He also did not re-

interview either Ms. Roe or Mr. Doe after talking to the
witnesses.

After he completed his investigation, he made a

finding of “reasonable cause” on three separate violations of the
Code of Conduct and the matter then proceeded to the next step of
the student disciplinary process.
The next stage of the process involves a hearing
coordinator.

In this case, that was Matthew Page.

Mr. Page’s

duties included putting together a hearing packet for the panel
that was selected to decide whether John Doe was “responsible” or
“not responsible” for the alleged misconduct.

That panel of five

members was drawn from a larger group of University faculty and
staff who had been trained to act as members of a hearing board;
here, it consisted of three men and two women.

Two were members

of the faculty, and three were staff members.
Some, but not all, of the training materials used to train
hearing panel members are found in the record as Exhibit 3.

Many

of those documents were intended, according to Kellie Brennan, to
educate the panel members about sexual assaults on campus.

They

include statements like a “[v]ictim centered approach can lead to
safer campus communities”; “[s]ex offenders are overwhelmingly
white males”; “[i]n a large study of college men, 8.8% admitted
rape or attempted rape”; “[s]ex offenders are experts in
rationalizing their behavior”; and “22-57% of college men report
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perpetrating a form of sexually aggressive behavior.”
The hearing packet (Ex. 5) consisted primarily of the
witness statements and letters from character witnesses, as well
as a large number of text messages exchanged between Mr. Doe and
Ms. Roe.

It did not include Ms. Roe’s academic records, and

nothing in the hearing packet revealed the sequence of events
which occurred in March and April, 2014, including Ms. Roe’s
receipt of the letter referring her to the ABRC, the fact that
she was facing a real possibility of dismissal from the College
of Medicine, the fact that she first disclosed the sexual assault
to a University employee only after she received the March 23
letter, and the fact that the ABRC granted her a significant
accommodation - permitting her to remain in school even though
she failed the first-year curriculum twice - as a direct
consequence of her having attributed many of her difficulties to
a sexual assault.
During this same time frame, which ran from the date of Mr.
Majarian’s finding to the date of the hearing (July 15, 2014),
John Doe hired an attorney, Fran Ward.

He and Ms. Ward were

permitted to review all of the material in the hearing packet
prior to the hearing, although they were not allowed to make
copies.

As part of his defense strategy, Mr. Doe retained an

expert witness.

Because the University’s refusal to permit that

witness to testify or to make his report a part of the record is
a part of Mr. Doe’s due process claim, it is necessary to provide
some detail about the subject of that report and how it related
to the issues in this case.
One of the significant aspects of this case is that Ms. Roe
said that she was unable to recall anything about the evening in
question beyond a certain point.
friends (which did not

She had been with a group of

not initially include Mr. Doe, whom she

had known prior to that evening) who were celebrating someone’s
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birthday and, by all accounts, drinking fairly heavily.

They

were at a restaurant in Columbus when she and Mr. Doe exchanged
some text messages and he proposed to meet her.

He did so, and

they eventually ended up going back to his house (which he shared
with other roommates) and spending the night together.

According

to the accounts Ms. Roe gave to Mr. Majarian and the hearing
panel, she did not recall meeting up with Mr. Doe or any other of
the evening’s events after that occurred.

In fact, she

remembered nothing that happened between the time she was with
her friends at the restaurant and when she awoke the next morning
at Mr. Doe’s residence.
have been drugged.

She suggested to the ABRC that she might

On the other hand, Mr. Doe said that she

interacted normally with him, that she gave him no reason to
believe that she was inebriated beyond the point of consent, that
she consumed little or no alcohol after he met up with her, and
that everything which occurred was consensual.
In order to attempt to prove that Ms. Roe was capable of
providing rational consent that evening, Mr. Doe retained Dr.
Alfred E. Staubus, a professor emeritus at the Ohio State
University College of Pharmacy and an expert in pharmacology who
has served as an expert witness in many similar cases.

Dr.

Staubus took information from the witness statements about the
amount of alcohol which Ms. Roe had consumed and calculated her
likely blood alcohol level at various times during the evening.
Based on his calculations, he concluded that she would not have
been too intoxicated to consent to sexual activity at the
relevant time.

See Ex. 9

Mr. Doe asked that the report be submitted to the hearing
panel and that Dr. Staubus be allowed to sit through the hearing
and then, based on more specific information about how much Ms.
Roe had to drink, to testify as to his conclusions.

The Code of

Student Conduct contains a provision about what types of
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witnesses can testify at a student conduct hearing.
Section 3335-23-10(C).

See Ex.1,

As interpreted by Mr. Page, that

provision allows only fact witnesses and character witnesses to
testify.

Because Dr. Staubus did not fit into either of those

categories, Mr. Page did not incorporate the report into the
hearing packet and did not permit Dr. Staubus to attend the
hearing or to testify.

That decision was not based either on the

lack of relevance of the testimony or the lack of qualifications
of Dr. Staubus to express his opinions.
The hearing took place on July 15, 2015.
three hours.

It lasted about

Both John Doe and Jane Roe attended in person,

although she was in a separate space and appeared via a video
camera link.

She was accompanied by Natalie Spiert.

Testimony

was taken from both of them and from approximately six other
witnesses.

Each was allowed to question the witnesses, and Mr.

Doe was permitted to ask questions of Ms. Roe, although he had to
direct his questions to Mr. Page, the hearing coordinator, who
then repeated or rephrased them to Ms. Roe.

Mr. Doe was

permitted to have his attorney, Ms. Ward, with him in the hearing
room, but she was not permitted to participate in the hearing.
She could, however, whisper to Mr. Doe, write him notes, or ask
for a recess so that she could speak to him.

Mr. Doe was also

permitted to read the concluding paragraphs of Dr. Staubus’
report as part of his closing statement.
Ms. Roe made at least two statements during the course of
the hearing which Mr. Doe claims were untrue.

First, she was

asked by John Doe what her grades had been that year.
questioned the relevance of that information.

She

In response, John

Doe stated that a student had only six years to complete medical
school and if someone had to repeat a year twice, it was grounds
for dismissal.

He explained that he wanted to know if this

incident had affected her grades and, more specifically, if she
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had failed her second attempt at completing her first year and
would not be able to re-enroll.

Ex. 4, Tr. 208.

Jane Roe’s response to this question was that she “had to
present this case to the [ABRC] and tell them about this assault
and how it affected me throughout this year.”

After expressing

how hard it had been to do that, she said that “their decision to
keep me in school and allow me continue next year in the fall was
already decided before my decision to report this assault.”
4, Tr. 209.

Ex.

John Doe did not ask any follow-up questions about

that subject.
Secondly, Jane Roe said, toward the end of the hearing (Ex.
4, Tr. 300) that she had pursued the matter formally not for any
ulterior motive or to obtain any benefit but did so in order that
others would not face the same situation, and so that Mr. Doe
would realize that what he did was wrong.

She made the specific

statement that “this [reporting the assault] doesn’t give me any
benefit other than holding him responsible and meeting an ethical
obligation – or responsibility, rather.”
As will be discussed in more detail later, Mr. Doe asserts
that the sequence of events recited above, which was not
disclosed to either him or to the hearing panel - specifically,
the close relationship in time between Jan Roe’s receipt of the
March 23, 2015 letter from Dr. Danforth and her decision on March
25 to begin contacting various University departments about the
assault, culminating in her successful effort to avoid dismissal
- would have cast doubt on the truth of these statements.

He

contends that this sequence of events suggests that Ms. Roe had a
motive to fabricate her allegations in order to avoid being
dismissed from the College of Medicine, and that she succeeded in
that effort only because she claimed to have been the victim of a
sexual assault.
To complete the history of the administrative proceedings,
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the hearing panel found Mr. Doe “responsible” for all three
alleged violations and concluded that he should be immediately
dismissed from Ohio State.

He appealed to a single appeals

officer, Dr. Adams-Gaston.

Mr. Page, the hearing coordinator,

prepared a summary of the hearing procedure in response to Mr.
Doe’s appeal and provided it to Dr. Adams-Gaston, but that
summary was not served on Mr. Doe or his attorney.

Seven weeks

after the hearing panel made its decision, Dr. Gaston-Adams
upheld it.

That action concluded the administrative process, and

this lawsuit followed.
In response to being dismissed from Ohio State, John Doe
enrolled in another medical school, although it is not located in
the United States.
clinical rotations.
residency.
2016.

He is completing his final year doing
The next step in his medical education is a

Decisions about residency will be made by March 14,

Mr. Doe is concerned that his chances of obtaining a

residency have been greatly reduced by virtue of his dismissal
from Ohio State.

He provided some testimony - which was clearly

hearsay - to the effect that a student in good standing at Ohio
State is almost guaranteed to obtain a residency, whereas a
student in his situation stands less than a 50% chance of doing
so.
II.

Preliminary Injunction Standard

The legal test for issuing a temporary restraining order is
well-known. The decision-making process involves balancing four
factors-whether the plaintiff will suffer irreparable injury if
relief is not granted, whether the plaintiff has shown a strong
or substantial likelihood of success on the merits, and how the
grant or denial of relief would affect both public and private
interests. See, e.g., Workman v. Bredesen, 486 F.3d 896, 905 (6th
Cir. 2007) (describing the factors as “(1) whether the claimant
has demonstrated a strong likelihood of success on the merits,
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(2) whether the claimant will suffer irreparable injury in the
absence of a stay, (3) whether granting the stay will cause
substantial harm to others, and (4) whether the public interest
is best served by granting the stay”).
“No single factor will be determinative as to the
appropriateness of equitable relief ....”

Six Clinics Holding

Corp., II v. Cafcomp Systems, Inc., 119 F.3d 393, 400 (6th Cir.
1997), citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th
Cir. 1985). Rather, these factors are to be balanced, and “[a]
finding that the movant has not established a strong probability
of success on the merits will not preclude a court from
exercising its discretion to issue a preliminary injunction if
the movant has, at a minimum, ‘show[n] serious questions going to
the merits and irreparable harm which decidedly outweighs any
potential harm to the defendant if the injunction is issued.’ ”
Gaston Drugs, Inc. v. Metropolitan Life Ins. Co., 823 F.2d 984,
988 n. 2 (6th Cir. 1987) (quoting Friendship Materials, Inc. v.
Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982)); see also
Frisch's Restaurants v. Elby's Big Boy, 670 F.2d 642, 651 (6th
Cir. 1982). Nevertheless, “irreparable injury is generally
required to warrant injunctive relief,” Kendall Holdings, Ltd. v.
Eden Cryogenics LLC, 630 F.Supp.2d 853, 866 (S.D. Ohio 2008), so
that if the injury which the plaintiff seeks to prevent is
compensable by a monetary damages award, there is usually no
basis upon which to grant any type of injunction, no matter how
strong a showing of likelihood of success on the merits is made.
III.
A.

Discussion

Likelihood of Success on the Merits

At the close of the hearing, John Doe identified five
separate due process violations which, he alleges, rendered his
disciplinary procedure unconstitutional.

They are:

(1) The decision to exclude Dr. Staubus’ report and
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testimony;
(2) The failure by Mr. Majarian to conduct a full
investigation;
(3) The failure by multiple Ohio State employees to
disclose, either to Mr. Doe or to the hearing panel, the sequence
of events which occurred in March and April, 2014, or the full
extent of Ms. Roe’s academic accommodations;
(4) The bias which the training materials introduced into
the members of the hearing panel; and
(5) Permitting Ms. Roe to make two false statements during
the course of the hearing.
It is Ohio State’s position that, even accepting the version
of the facts most favorable to Mr. Doe (and Defendants make this
same argument in their motion to dismiss), he has not proved a
due process violation.

The resolution of this issue depends on

the extent to which the Due Process Clause applies to university
student disciplinary proceedings and what rights it confers on
students like Mr. Doe who are accused of misconduct and face
explusion.
A.

General Principles

There is no question that “the Due Process Clause is
implicated by higher education disciplinary decisions.”

Flaim v.

Medical College of Ohio, 418 F.3d 629, 633 (6th Cir. 2005).

The

Flaim court also made clear that “[t]he amount of process due
will vary according to the facts of each case and is evaluated
largely within the framework laid out by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18
(1976)” and that in a case involving a disciplinary, rather than
an academic, expulsion, the court is to “conduct a more searching
inquiry.”

Id. at 634.

In their pre-hearing brief, Defendants

endorse these principles, see Doc. 58 and this Court has applied
them to similar student disciplinary cases.
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See, e.g., Richards

v. McDavis, 2013 WL 5297244 (S.D. Ohio Sept. 19, 2013).
Also, it is not disputed that the basics of due process
consist of notice of the charges and an opportunity to be heard.
See Goss v. Lopez, 419 U.S. 565, 579 (1975).

Here, John Doe does

not dispute the adequacy of the notice he received; his claims
focus on the adequacy of the investigative and hearing processes.
As to that claim, the Court’s analysis is governed by Mathews v.
Eldridge, and it requires consideration of three factors: “(1)
the nature of the private interest affected—that is, the
seriousness of the charge and potential sanctions, (2) the danger
of error and the benefit of additional or alternate procedures,
and (3) the public or governmental burden were additional
procedures mandated.”

See Flaim, supra, at 635.

The first factor is, in this type of case, a compelling
interest; as one court has put it, facing charges of sexual
assault against a fellow student implicates not only a student’s
interest in not being wrongly expelled from school, but involves
“potential consequences [which] reach beyond [the student’s]
immediate standing at the University” such as the student’s good
name, reputation, honor, and integrity, opportunities for
additional education, and future employment.

See Gomes v. Univ.

of Maine System, 365 F.Supp.2d 6, 16 (D. Me. 2005), citing Goss,
419 U.S. at 574.
In the context of such a student disciplinary process, Flaim
explains that, applying the Mathews factors, the hearing provided
must be “meaningful” and, if conducted live, the student must be
allowed to be present for all significant proceedings.

However,

courts have not applied the rules of evidence to those
proceedings, have not required that witnesses be sworn, and have
not (in most cases) imposed a requirement that the student be
allowed to be actively represented by counsel.

Some type of

record-making procedure is usually required, but an appellate
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process is usually not.

See id. at 636-37.

Finally, the Flaim

court recognized that the Due Process Clause sets a floor, not a
ceiling, for the type of process a university might wish to
provide its students, and that a procedure which is “far from
ideal and might certainly [be] better” may still satisfy the
requirements of due process.
B.
1.

Id. at 637.

John Doe’s Specific Claims

Failure to Disclose Jane Roe’s Academic Records

The most significant of the alleged due process violations
relates to information which might, had it been disclosed, have
allowed the hearing panel better to assess Ms. Roe’s credibility.
That is, of course, the evidence about when Ms. Roe first
reported the incident to anyone with official standing at the
University, and what the ABRC provided to her as an accommodation
(and when and why it did so).

At the preliminary injunction

hearing, counsel for Ohio State suggested, through questioning
and otherwise, that nothing prevented John Doe from asking
questions about the timing and nature of Ms. Roe’s reporting of
the incident, or about the extent of the academic accommodations
she received (and when and why she received them) even without
the documents in question.

That suggestion is, at the same time,

both true and not very helpful.
No attorney, when cross-examining a witness, can be expected
to think of and ask all relevant questions without some ability
to identify fruitful areas of cross-examination in advance.

That

is why discovery is available in civil cases, and the rule of
Brady v. Maryland, 373 U.S. 83 (1963) has been interpreted to
require the disclosure of impeachment evidence in criminal cases.
See United States v. Bagley, 473 U.S. 667, 676 (1985).

In each

of those settings, nothing prevents an attorney from asking the
questions which, once the evidence in question is disclosed,
become obvious, but the lack of any foundation for asking them -14-

i.e. the undisclosed exculpatory evidence - is still viewed as
prejudicial.

That is even more likely to be so in a student

disciplinary hearing where it is the student, and not his or her
attorney, who is primarily responsible for presenting the defense
at the hearing.
The University’s failure to provide Mr. Doe with records in
its possession which would have assisted him in attacking Ms.
Roe’s credibility at the hearing can be conceptualized, at least
in part, as a failure to provide John Doe with the opportunity to
conduct a meaningful cross-examination of Jane Roe at the
hearing.

In the typical case, however, the Due Process Clause

does not compel a university to allow cross-examination at all.
See, e.g., Sterrett v. Cowan, 85 F.Supp.3d 916, 929 (E.D. Mich.
2015)(“confronting the Complainant, let alone other witnesses, is
not an absolute right and is generally not part of the due
process requirement in a school disciplinary setting”); see also
Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972) (“[t]he
right to cross-examine witnesses generally has not been
considered an essential requirement of due process in school
disciplinary proceedings”).

The Winnick court also observed that

“if this case had resolved itself into a problem of credibility,
cross-examination of witnesses might have been essential to a
fair hearing,” id. at 550, but since that case did not involve
such a problem, that statement is dictum.

Nevertheless, even if

this is one of those cases where cross-examination was essential
to a fair hearing, John Doe was afforded the right to confront
and to cross-examine each of the witnesses who testified,
including Jane Roe.

But given that he may well not have been

entitled, on due process grounds, even to question her - as
opposed simply to giving the hearing panel his version of events
after learning what her version was - it is not likely that this
Court will find that he had a constitutional right to effective
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(or, more properly phrased, more effective) cross-examination.
The other conceptual aspect of this claim focuses on the
prejudice to Mr. Doe resulting from the failure to turn over
potentially valuable and exculpatory impeachment evidence essentially a Brady claim.
other cases.

Similar claims have not fared well in

In Gomes, for example, the court was faced with a

case much like this one, where the issue was consent to sexual
conduct and the parties’ credibility was a crucial factor.

The

police had also conducted an investigation and, according to the
accused students, the police notes of the complainant’s interview
contained inconsistent statements which could have placed her
credibility in doubt.

The university’s investigator had those

records but did not provide them either to the accused students
or the hearing committee.

That failure (coupled with the fact

that the complainant was given access to the records) raised
serious due process concerns.

However, the court found that

“[t]ight time constraints” and “a general rule against imposing
discovery requirements on university disciplinary proceedings,”
among other factors, precluded finding a due process violation.
Gomes, 365 F.Supp.2d at 22.

The second consideration applies

here as well.
Even if it is true that, had the entire picture been before
them, Mr. Doe would have been better able effectively to
challenge Ms. Roe’s motivation for bringing forth her allegations
of sexual assault, and the hearing panel would have been better
able to judge her credibility, that does not mean that all
aspects of this evidence were concealed from and unknown to both
Mr. Doe and the hearing panel.

Ms. Roe explained in her opening

statement that she had taken a leave of absence after her first
semester of medical school and, as a result, had restarted her
first year of medical school in August, 2014.
independently aware of that fact.
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Mr. Doe was

Ms. Roe testified without

contradiction that she told a friend (but not any University
official) as early as December, 2014, that she was struggling
with an issue involving Mr. Doe, and she related the entire story
to that friend in January, 2015, two months before the letter
from Dr. Danforth was written.

She also testified that at some

time during the year she became unable to do school work.

At the

hearing, she brought up her meeting with the ABRC and revealed
the fact that the ABRC had permitted her to remain in school, a
decision that Mr. Doe admittedly knew was very unusual.

She also

made clear that she told that committee about the sexual assault.
In her witness statement, Ms. Roe said she was unaware of the
official reporting process concerning sexual assault until she
spoke with one of the medical school deans about it.

Everyone

involved in the process was aware of her substantial delay in
reporting it; the notes of Ms. Roe’s meeting with Mr. Majarian
where she first provided details of the assault are in the
hearing packet and are dated May 1, 2015, almost ten months after
the incident.

The point of reciting all of these facts is to

show that the impact of the non-disclosed information may not
have been as crucial as Mr. Doe contends.

Certainly, it would

have been useful; it is difficult to describe it as critical.
That cuts against the likelihood that Mr. Doe will succeed on the
merits of this part of his claim.
2.

Adequacy of the Investigation

In the Court’s view, the inadequate investigation claim is
closely tied to the failure to disclose relevant evidence claim.
The gist of this complaint is that, had Mr. Majarian done a more
thorough job of collecting evidence, he would have found, and
included in the hearing packet, the timeline evidence in
question.

The primary purpose of his investigation, however, was

to enable him to decide if the case should proceed beyond the
investigatory stage; that is, to help him determine if the
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“reasonable cause to believe” standard was satisfied.

There is

no evidence that he would have decided that issue differently had
he known of the timeline of events which occurred in March and
April, 2015, or if he had known of the exact academic
accommodation given to Ms. Roe.

In any event, Mr. Doe does not

argue that his rights were violated by Mr. Majarian’s reasonable
cause finding, but only by the fact that “a biased investigation
[i.e. one lacking the timeline evidence] ... [was] then provided
to the trier of fact.”

Plaintiff’s Hearing Brief, Doc. 61, at 8.

The Court does not consider this to be an independent claim of a
due process violation, and for the reasons set forth above,
thinks it unlikely that it will succeed.
3.

Failure to Correct False Testimony

Although phrased somewhat differently, the claim that the
University (primarily through Natalie Spiert, Ms. Roe’s advocate)
failed to correct false testimony at the hearing also dovetails
into the exculpatory evidence claim.

The corrections at issue

would have consisted of revealing to the hearing panel that Ms.
Roe had, in fact, told University officials about her allegations
of sexual assault as part of an effort to avoid dismissal from
school, and that those allegations were brought forth prior to
the ABRC hearing (and perhaps in response to the imminency of
that hearing).

Ms. Spiert, however, testified that she did not

perceive either of the two statements in question to be false
because Ms. Roe never made a formal report of her allegations
until after the ABRC made its decision to keep her in school, and
because the academic benefit which Ms. Roe obtained stemmed not
from reporting the alleged assault to Mr. Majarian, but from
explaining the circumstances to the ABRC - something Ms. Roe
revealed in her testimony to the hearing panel.

Again, Ms.

Spiert could perhaps have amplified the testimony or provided a
larger context by pointing out that other facts were not
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mentioned as part of these statements, but that is a far cry from
intentionally permitting materially false testimony to be
presented to a hearing panel.

Again, the likelihood of success

on this claim is not great.
4.

Exclusion of Expert Testimony

Turning to the decision to exclude Dr. Staubus’ report and
testimony, to the extent that Mr. Doe may be suggesting that this
exclusion is, in and of itself, a due process violation, he has
cited no cases which so hold.

Nor do the cases above suggest

that the opportunity to provide expert testimony is a necessary
due process protection in a university disciplinary proceeding.
Mr. Doe’s argument is more appropriately characterized as one
that, because he was not permitted to present expert testimony to
refute Ms. Roe’s claim of inability to consent, his due process
right to defend himself against the charges was violated.

This

right, as recognized by courts, “generally include[s] the
opportunity to make a statement and present evidence” and “may
also include the right to call exculpatory witnesses.”

Flaim,

418 F.3d at 636.
Mr. Doe retained Dr. Staubus to provide evidence that Ms.
Roe was capable of providing rational consent.

That was

certainly the key issue at the disciplinary hearing.

But Mr. Doe

was not prevented from offering other evidence on that issue, and
he did so. For example, he testified that, when he and Ms. Roe
met up that night, she was behaving normally.

He further

testified that, after he joined her, she consumed little or no
alcohol.

One of his witnesses testified that when he saw Mr. Roe

sitting on the couch with Mr. Doe about 1:30 in the morning, he
carried on a very brief but normal conversation with her. Beyond
this, Mr. Doe was permitted to read Dr. Staubus’ conclusions as
part of his closing statement.

Given these circumstances, the

impact of excluding Dr. Staubus’ report was incremental, and did
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not prevent Mr. Doe from defending himself on the central issue
of Ms. Roe’s ability to consent.

In a different case where the

central issue is one which could only be understood or addressed
through expert testimony, the due process calculus might produce
a different result, but it does not do so here.

Again, keeping

in mind that a student disciplinary proceeding and not a trial is
involved in this case, it is unlikely that Mr. Doe will succeed
on the merits of this claim.
5.

Hearing Panel Bias

Finally, as to the claim of bias on the part of the members
of the hearing panel, the applicable legal standards are wellexplained by this language from Furey v. Temple University, 884
F.Supp.2d 223, 255 (E.D. Pa. 2012):
An impartial and unbiased adjudicator is a fundamental
part of due process. [internal citations omitted]. In
disciplinary hearings, there is a presumption of
impartiality in favor of the school administrators. The
plaintiff bears the burden of rebutting this
presumption with sufficient evidence. Gorman [v.
University of Rhode Island], 837 F.2d [7 (1st Cir.
1988)], at 15. Allegations of “prejudice of university
hearing bodies must be based on more than mere
speculation and tenuous inferences.” Id. (quoting Duke
v. N. Texas State Univ., 469 F.2d 829, 834 (5th
Cir.1972)).
There is undeniably some evidence in this case from which it
could be inferred that the training materials used to train these
panel members are biased against males who are accused of sexual
misconduct.

Counsel for Mr. Doe made the point that a jury would

never be permitted to hear the type of statements contained in
those materials because, in their effort to dispel what are
perceived as common stereotypes or myths about campus sexual
assaults, they seem to provide replacement stereotypes - for
example, that someone who comes across as honest and
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straightforward may well be a sexual predator who has learned how
to disguise his true nature, or that statistically a large
percentage of college-age males commit sexual crimes.
On the other hand, there is no evidence in this record as to
what the balance of the training consisted of.

Kellie Brennan

testified that there is additional information provided about due
process and about how to conduct a fair and impartial hearing.
Context matters.

At this stage of the case, the Court’s inquiry

is limited to determining whether, given that the sole evidence
of bias is the power point slides which make up Exhibit 3, it is
likely that Mr. Doe will prevail on his claim of bias.

That does

not appear to be the case.
6.

Conclusion

As another court has said about the type of procedure
involved in this case,
neither a full-scale adversarial proceeding similar to
those afforded criminal defendants, nor an
investigation, which would withstand such a proceeding,
is required to meet due process. A university's primary
purpose is to educate students; “[a] school is an
academic institution, not a courtroom or administrative
hearing room.” [footnote omitted] A formalized hearing
process would divert both resources and attention from
a university's main calling, that is
education.[footnote omitted] Although a university must
treat students fairly, it is not required to convert
its classrooms into courtrooms.
Murakowski v. Univ. of Delaware, 575 F.Supp.2d 571, 585-86 (D.
Del. 2008).

When a university provides a student facing

disciplinary proceedings with a full hearing, advance notice of
the charges and the evidence, and the opportunity to call
witnesses and to confront the accuser, it is extremely difficult
for that student to prove a due process violation.
to describe this case.

That appears

The Court concludes, for all of these
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reasons, that John Doe has not demonstrated that he is likely to
succeed on the merits of his due process claim.
C.

Irreparable Injury

As noted above, there are cases where a relatively weak
showing that a plaintiff is likely to succeed on the merits can
be counterbalanced by a strong showing of irreparable injury.
That, too, is not this case.
This Court has previously canvassed the case law concerning
irreparable injury arising out of an interruption or suspension
of higher education, observing in Sellers v. University of Rio
Grande, 838 F.Supp.2d 677, 687 (S.D. Ohio 2012) that
[t]here is some authority for the proposition that an
interruption in an educational program is not, of
itself, an irreparable injury. See, e.g. Baer v.
National Bd. of Medical Examiners, 392 F.Supp.2d 42, 49
(D. Mass. 2005)(stating, in the context of a medical
student's ADA claim, that “her inability to continue as
a medical student without interruption at Drexel, while
desirable, is not a harm that is irreparable to Baer's
potential medical career”). There is contrary case
law, however, especially when the denial of an
educational opportunity is coupled with other types of
harm. Thus, the court in Maczaczyj v. State of N.Y.,
956 F.Supp. 403, 408 (W.D.N.Y. 1997) found the evidence
of irreparable harm caused by the refusal of a
university to permit a disabled student to pursue a
graduate degree to be sufficient to support a
preliminary injunction where the exclusion “would most
likely affect the plaintiff's ability to engage in the
future employment of his choice” and there was also an
“unquantifiable effect th[e] exclusion will have on
plaintiff's mental illness.” Because the plaintiff was
“likely to suffer additional psychic harm,” the court
found the injury to be irreparable. Other courts have
similarly found even a delay in the ability to pursue a
chosen profession to be the type of irreparable harm
which will support temporary injunctive relief. See,
e.g., Bonnette v. District of Columbia Court of
Appeals, 796 F.Supp.2d 164, 186 (D.D.C. 2011)(“The lost
opportunity to engage in one's preferred occupation
goes beyond monetary deprivation”).

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As evidence of an irreparable injury which would flow from his
failure to gain reinstatement, Mr. Doe offered only his own
testimony that residencies are more likely to be obtained by
someone who is a student in good standing at Ohio State than
someone in his situation.

He described the “match” and

“scramble” procedures by which medical students are offered
residencies, and provided some statistics which purportedly
supported his view.
As a matter of common sense, Mr. Doe’s claim has some
appeal.

But the subject of his testimony is not so well known or

accepted that the Court can take judicial notice of it, nor did
he ask the Court to do so.

A claim of injury must be based on

admissible and reliable evidence, and his is not.

Everything Mr.

Doe knows about the residency process came from what someone else
has told him.

That type of hearsay evidence is a thin reed upon

which to rest a claim of irreparable injury.
There is also some question about whether he will suffer any
legally cognizable injury if he is not reinstated to Ohio State
prior to March 14, 2016.

He may well obtain a residency.

If he

does, it would be, on this record, mere speculation as to whether
that residency would be of lesser value to him than any residency
he would get if he were able to represent to various residency
programs that he was a student in good standing at The Ohio State
University College of Medicine.

Even if that were true, there is

no evidence in this record about how the difference in the
quality of a residency would play out over the course of a career
in terms of either positions available or income potential.
Certainly, Mr. Doe’s medical education pathway has been
disrupted by his dismissal from Ohio State.

But it is far from

clear that, absent an injunction at this point, he will be unable
to complete his education or to pursue his chosen profession.
Given this state of the record, the risk of irreparable injury is
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not sufficiently strong to outweigh the low probability that he
will succeed on the merits of his constitutional claims.
D.

The Public and Private Interests

The public and private interests affected by a preliminary
injunction do not appear strongly to favor either party.
Certainly, any plaintiff who has wrongly been expelled from a
university has an interest in reinstatement, and there is a
public interest in vindicating constitutional rights.

On the

other hand, universities have an interest in disciplining
students who have committed serious infractions of university
rules and in protecting other students from the type of conduct
alleged here, and the public has a similar interest.

The conduct

involved in this case does not speak directly to Mr. Doe’s
competence as a medical student, so enabling him to get a
residency - if that would be the effect of an injunction - would
not appear to pose a substantial risk of harm to others.
However, Ohio State has represented in a post-hearing brief that
if Mr. Doe were reinstated, he would be required to be on campus
on occasion, which would place him in the same environment as Ms.
Roe.

Mr. Doe suggests, in his post-hearing brief, that the Court

can solve that problem by directing that he have no contact with
her, or she can resort to obtaining a protection order from the
state court, but even with such measures in place, there is some
potential that her interests would be adversely affected by a
preliminary injunction.

On balance, these factors do not favor a

result contrary to the outcome suggested by the first two
factors.
IV.

Miscellaneous Matters

The Court’s disposition of the preliminary injunction motion
renders it largely unnecessary to discuss other issues which the
parties have raised in their various filings.

For example, Ohio

State has argued that even under the Ex Parte Young doctrine (see
-24-

Ex Parte Young, 209 U.S. 123 (1908), Mr. Doe cannot avoid the
application of the Eleventh Amendment as a bar to his claims.
That would not appear to be correct as to the request for
preliminary injunctive relief, because that is relief which is
both prospective in nature and designed to remedy an alleged
violation of Mr. Doe’s right to continue with his education at
Ohio State, but the Court need not decide that issue if no
injunction will be granted.
Similarly, Ohio State argues that it could not have provided
Mr. Doe or his counsel with copies of Jane Roe’s academic records
which would show the timeline in question because that would have
violated the Family Educational Rights and Privacy Act (FERPA),
20 U.S.C. §1232g.

It seems to the Court that, at a minimum, the

hearing panel could have been given access to those records, and
perhaps that the records could have been redacted to the extent
that their production would not have violated FERPA but still
provided Mr. Doe with the information he sought, something he
suggests in his post-hearing brief.

Again, resolution of the

preliminary injunction motion in Ohio State’s favor moots that
question.
Finally, the Court had asked counsel at the hearing if any
party objected to shortening the period for objecting to the
Report and Recommendation from fourteen to seven days.
consented to that action.

Mr. Doe

Ohio State has objected based on its

counsel’s unavailability for a short period of time later this
month, but since the objection, if any, would likely come from
Mr. Doe, that does not seem to be an obstacle to shortening the
time for objection.

The Court will do so at the conclusion of

this Report and Recommendation.
V.

Recommended Disposition

For all of the reasons set forth above, it is recommended
that the motion for preliminary injunctive relief (Doc. 2) be
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denied.
VI.

Procedure on Objections

If any party objects to this Report and Recommendation, that
party may, within seven days of the date of this Report, file and
serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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